The case involved a 34-year employee with no history of time theft, benefits fraud or other similar behaviour. The grievor requested holiday time from October 9 to 11, 2013, and the employer denied his request. The grievor then reported back pain on October 4 and called in sick on October 9; he advised he had a doctor’s note and his return to work date was unknown.

The employer strongly suspected the grievor wanted the holiday time for a road trip, as he had previously requested the days off. The employer hired a private investigator to conduct surveillance of the grievor both at his home and in public. The grievor provided the doctor’s note to his employer on October 11.

The employer subsequently dismissed the grievor for fraudulently claiming sick leave for three days and obtaining weekly indemnity benefits, and being dishonest about the reasons for his absence during the employer’s investigation.

The employer sought to introduce the surveillance evidence at the arbitration hearing. The union argued the evidence should be excluded, as it breached the grievor’s privacy rights.

Law

In his award, Arbitrator James Dorsey took the opportunity to thoroughly review the law of admissibility of surveillance evidence in the arbitral jurisprudence, noting the different approaches in B.C. and Ontario.

In Ontario, arbitrators are divided as to whether the test for admissibility is relevance or reasonableness. In particular, some arbitrators in Ontario assert that a discretion exists to exclude such evidence if the employer acted unreasonably in ordering the surveillance, while others deny that any discretion exists and will admit any evidence that is relevant to the issues in dispute, without consideration of the circumstances in which it was obtained.

In British Columbia, however, arbitrators approach the admissibility of surveillance evidence by assessing reasonableness. The reasonableness assessment involves asking and answering two questions:

In all of the circumstances, was it reasonable to request the surveillance?

Was the surveillance conducted in a reasonable manner?

In every case, the question of whether to admit surveillance evidence requires a balancing of the employee’s right to privacy and the employer’s right to investigate. Reasonableness will include a consideration of whether there were alternative and less intrusive means to investigate the suspicion and obtain the relevant information.

Analysis and Decision

Arbitrator Dorsey applied the reasonableness test – as he believed to be appropriate. He determined that the surveillance evidence was collected without the grievor’s consent and without a reasonable basis for its collection at the time.

First, there was no evidence that the employer had a basis in its employment relationship with the grievor to suspect he would be dishonest. Second, it was unreasonable given that the employer made no less privacy-intrusive effort to obtain further information about the grievor’s sick leave claim before it commenced the surveillance. Arbitrator Dorsey said that the employer could have asked the employee to fax, e-mail or bring in the doctor’s note. Notwithstanding that it made no effort to obtain the information and it had no evidence he was a problem employee, the employer chose to initiate the surveillance immediately. This was an unauthorized violation of the grievor’s right to privacy.

The surveillance evidence was not admissible.

Take-Away Points

Employers often query whether they can conduct surveillance of employees suspected of abusing sick leave, and ask about the admissibility of the surveillance evidence in a future arbitration hearing.

This decision confirms that B.C. arbitrators continue to assess the admissibility of surveillance evidence applying a reasonableness approach. Even if the surveillance evidence is extremely reliable and relevant to the issues, it may still be excluded from evidence if the arbitrator concludes there was no reasonable basis for its collection or the surveillance was conducted unreasonably.

The reasonableness analysis will turn as always on the facts of each situation. For instance, this case would likely have had a very different outcome if the grievor was a problem employee with a history of dishonesty and had been questioned about his absence by the employer before it initiated the surveillance.

Overall, an employer ought to make a thorough qualitative assessment before engaging in any surveillance. Otherwise, it risks the evidence being deemed inadmissible in a future arbitration hearing.